Butler Bros. v. Mabin

Shehan, J., delivered the opinion of the Court. This is an appeal from a judgment of the Baltimore City Court entered upon the findings of the jury in favor ¹²⁷ of the appellee, Augusta Mabin, claimant, an employee of Butler Brothers or Scott Brothers, Incorporated. The claim was asserted against these employers and the Zurich General Accident & Liability Insurance Company, insurers, who are appellants. The question presented arises under the Workmen’s Compensation Act (Code, art. 101, sec. 1 et seq., as amended) and relates to issues involving an injury to the claimant’s hip, and an alleged injury to the lower back or coccyx (lower end of the spine).

The report of the accident to the Industrial Accident Commission stated that the injury sustained was to the left hip and consisted of a fracture of the left femur. In this report no specific mention is made of the injury to the lower back or coccyx, and it is insisted by the appellants that this injury was not presented to the Industrial Accident Commission and is therefore not to be considered in the appeal to the Baltimore City Court from the award of the Commission, because only such matters may be considered on the appeal as were presented for the disposition of the Commission, and that the injury to the coccyx was not taken into account in the Commission’s award. There is no question that the appellee met with an accident by slipping and falling to the floor in the employer’s place of business, and that such accident occurred in the course of and during her employment. The accident, the injury, and the right to compensation are not denied; neither is the average wage of the claimant brought into controversy.

The nature and extent of the injury is the real question involved. While it is true that not until the case was in the Baltimore City Court on appeal were there presented by the appellee specific issues as to the injury to the coccyx, on the other hand, in the testimony taken before the Commission, not only was the injury to the hip asserted and proved, but, likewise, evidence as to the injury of the lower spine was presented. Therefore the Commission did have before it the injury to the coccyx, and must have considered it as a part of the result of the accident. ¹²⁸ There is nothing to show a previous or subsequent accident, and it cannot be assumed that the injury to the coccyx could have been caused by another fall or other mishap. Because of their proximity, the obvious injury to the hip probably obscured and diverted attention from the less apparent, but serious, injury to the coccyx, which appears from the evidence to have been an involvement of the original accident and coincidental with it.

In the case on appeal to the Baltimore 'City Court, specific issues were filed by the claimant, in which the count was requested to submit to the finding of the jury substantially these issues: Was the claimant permanently totally disabled as a result of accidental injuries sustained on August 25th, 1933? Was the claimant disabled in the use of her back as a result of some injury? Was the disability to her back temporary in character? Was the claimant temporarily totally disabled as a result of the back injury, and is she still temporarily disabled therefrom, and what is the percentage of loss of use of her back as the result of such injury, and also the pércentage of loss of use of the claimant’s left leg?

These issues were allowed by the trial judge and were